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May 3, 2006

Eighth Circuit on state/federal disparity after Booker

The Eighth Circuit today in US v. Jeremiah, No. 05-3164 (8th Cir. May 3, 2006) (available here), speaks directly to the consideration of federal/state sentencing disparities after Booker.  Here is the heart of the court's discussion:

The District Court properly calculated Jeremiah's Guidelines sentencing range, and Jeremiah does not argue otherwise.  Rather, Jeremiah's sole argument on appeal is that in order to impose a reasonable sentence, the District Court was required by § 3553(a)(6) to consider the sentences imposed in Arkansas state courts for comparable conduct by defendants similarly situated to Jeremiah and to impose a sentence designed to diminish the disparity between the two.  This argument is unavailing.

In United States v. Deitz, 991 F.2d 443, 448 (8th Cir. 1993), we held that "the possible discrepancy between state and federal sentences is a factor the [Sentencing] Commission considered but chose not to account for in the Guidelines."  We reasoned that the "Commission's goal of imposing uniformity upon federal sentences for similarly situated defendants would be impeded, not furthered," if potential federal/state sentencing discrepancies were considered.  Id. at 447.... Although our decision in Deitz predates the Supreme Court's pronouncement in Booker that the Guidelines are merely advisory, we see nothing in Booker that casts doubt on our decision in Deitz. Unwarranted sentencing disparities among federal defendants remains the only consideration under § 3553(a)(6) — both before and after BookerSee United States v. Clark, 434 F.3d 684, 687 (4th Cir. 2006) (noting post-Booker that the "sole concern" of § 3553(a)(6) is disparities among sentences for federal defendants).

The District Court was neither required nor permitted under § 3553(a)(6) to consider a potential federal/state sentencing disparity in imposing Jeremiah's sentence.  Accordingly, we conclude that the District Court properly calculated Jeremiah's advisory Guidelines sentencing range, properly considered the § 3553(a) factors, and imposed a reasonable sentence.  We affirm.

Interestingly, the emphasis on  § 3553(a)(6) and an opaque footnote in Jeremiah perhaps hints that the Eighth Circuit believes a district court after Booker might still be permitted to consider potential federal/state sentencing disparity in its consideration of other factors set forth in § 3553(a).  But perhaps I am just trying to find a silver lining in what otherwise strikes me as a dark cloud decision for those interested in broader conceptions of sentencing equality.

May 3, 2006 at 11:51 AM | Permalink


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